PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-6624

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
MARIO N. BAKER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:08-cr-00088-REP-1; 3:10-cv-00579-REP)

Argued:

May 14, 2013

Decided:

June 13, 2013

Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.

Affirmed by published opinion.

Judge Wilkinson wrote
opinion, in which Judge Gregory and Judge Keenan joined.

the

ARGUED:
John W. Akin, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant.
Michael F. Murray,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Neal L. Walters, Benjamin P. Kyber, Third
Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant.
Neil H. MacBride,
United States Attorney, Alexandria, Virginia; Richard D. Cooke,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.

WILKINSON, Circuit Judge:

Defendant Mario Nathaniel Baker was convicted of multiple
federal firearm and drug offenses based on evidence that police
officers uncovered while searching his vehicle during a traffic
stop.

Bakers counsel never challenged the constitutionality of

the search, either through a suppression motion or on direct

appeal.

After his conviction became final, Baker filed a motion

under 28 U.S.C. 2255 seeking to vacate, set aside, or correct

his sentence partly on the ground that his counsel had been
unconstitutionally

ineffective

in

failing

to

challenge

the

search on direct appeal under Arizona v. Gant, 556 U.S. 332

(2009), which the Supreme Court decided while his appeal was
still pending.

The district court rejected this claim, and we

affirm for the reasons stated herein.

I.
A.
We

take

the

facts

pertinent

to

this

appeal

from

the

evidence presented at Bakers trial, construed in the light most

favorable to the government.

See Bereano v. United States, 706

F.3d 568, 571 n.5 (4th Cir. 2013).

On March 3, 2008, Shawn Nelson, an officer with the Henrico
County, Virginia, Police Department, stopped a vehicle that had
a broken taillight and an expired license plate.
2

Baker was

driving

the

vehicle,

passenger seat.

and

Dashawn

Brown

occupied

the

front

On checking Bakers drivers license against

state records, Nelson learned that Baker was the subject of an

outstanding

federal

arrest

warrant.

warrant, Nelson called for backup.

While

verifying

the

Once additional officers

arrived, Nelson arrested Baker and handed him over to one of the
other officers, who searched him and, finding no contraband,
secured him in a police car.
While

the

other

officer

was

dealing

with

Baker,

Nelson

turned his attention to Brown, asking him to exit the vehicle.

Brown did so but then began to walk away.

Nelson ordered Brown

to put his hands on the vehicle and started frisking him.

Nelson

felt

handgun

in

Browns

pocket,

Brown

When

attempted

to

reenter the vehicle -- claiming at the time that he wanted to

retrieve

his

floorboard.

cellphone,

which

was

on

the

passenger-side

Nelson struggled with Brown, wrestled him to the

ground, and arrested him for possessing the handgun.

He then

searched Brown incident to the arrest, finding 0.90 grams of

heroin, 0.40 grams of crack cocaine, $980 in cash, and a small
digital scale on his person.
After securing Brown in a police car, Nelson searched the
passenger

compartment

of

Bakers

vehicle,

starting

with

the

center console, where he found 20.6 grams of heroin, 0.24 grams

of crack cocaine, 12.2 grams of methadone, and a burnt marijuana

cigarette.

He also found another handgun in the glove box.

B.

Based

on

the

evidence

found

during

the

search

of

his

vehicle, Baker was indicted for various federal firearm and drug
offenses.

See 18 U.S.C. 922(g)(1), 924(c); 21 U.S.C. 841.

He was also charged with an additional firearm count stemming

from

previous

run-in

with

the

police,

in

2007.

Although

Bakers lawyer moved (unsuccessfully) to sever this additional

count,

he

never

filed

search of Bakers vehicle.

counts

and

was

sentenced

suppression

motion

challenging

the

Baker was convicted by a jury of all

by

the

trial

court

to

185

months

imprisonment.
Baker appealed his convictions and sentence to this court,
with his lawyer filing an opening brief on March 16, 2009.

On

April 21, 2009, the day before the government filed its response
brief, the Supreme Court decided Arizona v. Gant, which held
that, under the Fourth Amendment, the [p]olice may search a
vehicle
arrestee

incident
is

to

within

recent

occupants

reaching

distance

arrest
of

only

the

if

the

passenger

compartment at the time of the search or it is reasonable to

believe the vehicle contains evidence of the offense of arrest.
556 U.S. 332, 351 (2009).
sentence on August 7, 2009.

We affirmed Bakers convictions and

See United States v. Baker, 340 F.
4

Appx 145 (4th Cir. 2009), cert. denied, 130 S. Ct. 1548 (2010).
At no point between when the Supreme Court decided Gant and when
this court decided Bakers appeal did Bakers lawyer argue that
the

search

of

Bakers

vehicle

violated

the

Fourth

Amendment

under Gant.
C.
Proceeding pro se, Baker subsequently filed a motion to
vacate,

set

2255.

aside,

or

correct

his

under

28

U.S.C.

His motion asserted four claims for relief, all of

which the district court rejected.

No.

sentence

3:08cr88,

2012

WL

620240

See United States v. Baker,

(E.D.

Va.

Feb.

24,

2012).

Specifically, as relevant to this appeal, the district court

found

that

ineffective
vehicle

Bakers
in

under

counsel

failing
Gant

on

to

had

not

been

challenge

direct

appeal

the

unconstitutionally
search

[b]ecause

of
the

Bakers
evidence

found as a result of the search . . . still would be admissible

under

the

good

exclusionary

faith

rule,

exception

meaning

that

to

the

Baker

Fourth

could

not

Amendments
show

that

counsels failure to argue Gant on appeal prejudiced him.

Id.

at *2 (footnote omitted).
The district court denied a certificate of appealability
for

all

four

of

Bakers

claims.

See

id.

at

*3;

28

U.S.C.

2253(c).

While agreeing with the district court that three of

the

did

claims

not

merit

our

review,
5

we

granted

partial

certificate of appealability to consider the question whether

Bakers

lawyer

was

ineffective

in

failing

to

raise

Gant

argument on direct appeal.

II.
Warrantless
Fourth

searches

Amendment

established

and

--

are

subject

per

se

to

only

well-delineated

unreasonable
a

few

exceptions.

under

the

specifically

Katz

v.

States, 389 U.S. 347, 357 (1967) (footnote omitted).

United

Arizona v.

Gant, 556 U.S. 332 (2009), addressed when the exception to the
Fourth Amendments warrant requirement for searches incident to
a lawful arrest justifies a search of the passenger compartment
of the vehicle in which an arrestee is traveling.

As a general

matter, a search incident to a lawful arrest may extend only to

the

arrestees

person

and

the

area

within

his

immediate

control -- construing that phrase to mean the area from within

which

he

evidence.

might

gain

Chimel

v.

possession

of

California,

weapon

395

U.S.

or
752,

destructible
763

(1969).

Before Gant, the Supreme Court had interpreted this rule in the
context of vehicle searches to mean that when a policeman has
made a lawful custodial arrest of the occupant of an automobile,
he may, as a contemporaneous incident of that arrest, search the
passenger

compartment

of

the

automobile

as

well

containers found within the passenger compartment.

6

as

any

New York v.

Belton, 453 U.S. 454, 460 (1981) (footnote omitted); see also
Thornton v. United States, 541 U.S. 615 (2004).
The

federal

courts

of

appeals

tended

to

construe

the

Courts pronouncement in Belton capaciously.

Although a few

circuits

cabined

Beltons

holding

to

permit

search

of

vehicle incident to the arrest of an occupant only when the

arrestee

could

actually

reach

the

vehicles

passenger

compartment, most espoused a broader interpretation, according

to which police officers could search the vehicle regardless of
the arrestees location at the time of the search.
556 U.S. at 341-43 & nn.2-3 (collecting cases).

See Gant,
This court

adopted the broad reading, upholding, for instance, the search

of

vehicle

as

search

incident

to

an

arrest

where

the

arrestee had been handcuffed and removed from the vehicle when
the search occurred.

See United States v. Milton, 52 F.3d 78,

80 (4th Cir. 1995), overruling recognized by United States v.

Wilks, 647 F.3d 520, 522 (4th Cir. 2011).
Without purporting to overrule Belton and its progeny, Gant
rejected the lower courts capacious reading of that decision,
making
arrest

clear

that

authorizes

the

exception

vehicle

for

searches

searches
only

in

incident
two

to

an

specific

circumstances.

The first circumstance is when the arrestee is

unsecured

within

and

reaching

distance

compartment at the time of the search.

7

of

the

passenger

Gant, 556 U.S. at 343.

The

second

is

when

it

is

reasonable

to

believe

evidence

relevant to the crime of arrest might be found in the vehicle.

Id. (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring
in the judgment)).
Court

concluded,

When these justifications are absent, the

search

of

an

arrestees

vehicle

will

be

unreasonable unless police obtain a warrant or show that another

exception to the warrant requirement applies.
It

is

important

Amendment

doctrine

addressed

only

searches

that

the

incident

searches.

It

to

recognize
Gant

did

exception

to

left

to

lawful

those

not
the

aspects

change.
warrant

arrest,

unaltered

Id. at 351.

other

as

of

The

Fourth
decision

requirement

applied

exceptions

to

for

vehicle

that

might

authorize the police to search a vehicle without a warrant even

when

an

arrestee

is

secured

beyond

reaching

distance

of

the

passenger compartment and it is unreasonable to expect to find

any evidence of the crime of arrest in the vehicle.
346-47.

See id. at

The one most relevant to this appeal is the so-called

automobile exception, which permits a warrantless search of a

vehicle

when

there

is

probable

cause

to

believe

the

vehicle

contains contraband or other evidence of criminal activity.

Carroll v. United States, 267 U.S. 132 (1925).

See

III.
Baker

argues

that

his

lawyer

was

unconstitutionally

ineffective in failing to challenge the search of his vehicle

under Gant on direct appeal.

Once the Supreme Court decided

Gant, he contends, his lawyer should have argued to this court

that

the

decision

rendered

the

search

of

his

vehicle

unconstitutional, given that neither he nor Brown was within

reaching

distance

of

the

passenger

Nelson searched the vehicle. *

compartment

when

Officer

Had his lawyer made this argument,

Baker insists, the evidence obtained during the search would

likely have been excluded and all his convictions based on that
evidence would likely have been overturned.
To
effective

show

violation

assistance

of

of

the

counsel,

Sixth
a

Amendment

defendant

must

right
prove

to
(1)

that [his] counsels performance was deficient and (2) that

the deficient performance prejudiced the defense.
v.

Washington,

district

466

courts

U.S.

rulings

668,
on

687

each

(1984).
prong,

we

In

Strickland
evaluating

review

its

legal

conclusions de novo and its factual findings for clear error.

See United States v. Fulks, 683 F.3d 512, 516 (4th Cir. 2012).
*

Because of the other available grounds for disposing of

Bakers appeal, we need not decide whether the search was
justified under Gants other rationale -- namely, that it was
reasonable to expect to find additional evidence of the crimes
for which Baker and Brown were arrested in the vehicle.

For

the

following

reasons,

Baker

has

failed

to

make

the

requisite showing under either prong of the Strickland standard.

A.
Regarding
deficient
standard

when
of

professional

the

first

his

prong,

representation

reasonableness,
norms.

reasonableness

of

as

falls

466

challenged

performance

below

measured

Strickland,

counsels

lawyers

an

against

U.S.

at

objective

prevailing

688.

conduct,

is

in

[T]he
turn,

is

judged on the facts of the particular case, viewed as of the

time of counsels conduct.

Id. at 690.

To guard against

hindsight bias and unfair second-guess[ing], a defendant must

overcome

strong

presumption

that

counsels

conduct

falls

within the wide range of reasonable professional assistance.

Id. at 689.
The range of reasonable professional assistance is just as
wide

on

direct

appeal

as

it

is

at

trial.

In

particular,

[c]ounsel is not obligated to assert all nonfrivolous issues on

appeal,

as

[t]here

can

hardly

be

any

question

about

the

importance of having the appellate advocate examine the record

with a view to selecting the most promising issues for review.
Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc)
(quoting Jones v. Barnes, 463 U.S. 745, 752 (1983)).

Indeed,

requiring counsel to raise every claim, or even a multiplicity

of claims, runs the risk of detracting from contentions that may
10

be truly meritorious.

Appellate counsel accordingly enjoys a

presumption that he decided which issues were most likely to

afford relief on appeal, a presumption that a defendant can
rebut only when ignored issues are clearly stronger than those
presented.
1568

(4th

Id. (quoting Pruett v. Thompson, 996 F.2d 1560,

Cir.

1993);

Smith

v.

Robbins,

528

U.S.

259,

288

(2000)).
Bakers counsel claimed on direct appeal that the trial
court had erred in three respects: in denying Bakers motion to
sever the charge stemming from his previous encounter with the
police,

in

denying

his

post-trial

motion

for

judgment

acquittal, and in imposing an unreasonable sentence.

to

Baker,

each

of

these

issues

was

clearly

weaker

of

According
than

an

argument under Gant would have been, since the latter would have
impugned the search of his vehicle, the evidence it uncovered,
and thus the sole basis for all but one of his convictions.
Baker incorrectly assumes, however, that the search of his
vehicle
Gant.

would

necessarily

be

unconstitutional

if

it

violated

In fact, even if the search exceeded the limits of the

exception to the warrant requirement for searches incident to a

lawful arrest, as delineated in Gant, it was still justified by
another, independent exception, such that Bakers lawyer acted
reasonably in declining to challenge it.

11

As noted above, Gant addressed only the rule permitting

warrantless searches incident to a lawful arrest, as applied in
the

context

of

vehicle

searches,

leaving

unaltered

other

exceptions to the warrant requirement that might be relevant in

that context.

To illustrate the limits of its holding, the

Court in Gant expressly identified three such exceptions.

556 U.S. at 346-47.

See

Among them was the automobile exception,

according to which police officers may search a vehicle without

first obtaining a warrant if it is readily mobile and probable
cause exists to believe it contains contraband or evidence of
criminal activity.

Pennsylvania v. Labron, 518 U.S. 938, 940

(1996) (per curiam); see also Maryland v. Dyson, 527 U.S. 465,
466-67 (1999) (per curiam).

Note that, in contrast to Gants

rule, this exception permits police officers to search a vehicle

for evidence of any crime, not just the crime of arrest, but
only

on

showing

of

probable

cause

rather

than

mere

reasonable belief.
The Court in Gant emphasized that its decision in no way
affected

the

validity

or

scope

of

the

automobile

exception,

noting that [i]f there is probable cause to believe a vehicle

contains evidence of criminal activity, United States v. Ross,
456 U.S. 798, 820-821 (1982), authorizes a search of any area of
the vehicle in which the evidence might be found.
U.S.

at

347.

This

court,

in
12

turn,

similarly

Gant, 556

confirmed

the

continued

viability

of

this

exception

in

the

wake

of

Gant,

holding that even though a warrantless vehicle search might have

exceeded the limits articulated in Gant, it was nevertheless
constitutional because it was supported by probable cause.

See

United States v. Kellam, 568 F.3d 125, 136 n.15 (4th Cir. 2009).
So too here.

After Officer Nelson found a gun, drugs, $980

in cash, and a digital scale on Browns person, he had probable

cause to search the passenger compartment of Bakers vehicle.
Probable

cause

to

search

vehicle

exists

when

reasonable

officers can conclude that what they see, in light of their

experience, supports an objective belief that contraband is in
the vehicle.
Cir. 2012).
lawfully

United States v. Ortiz, 669 F.3d 439, 446 (4th

This standard is satisfied when a police officer

searches

vehicles

contraband on his person.

F.3d

538,

discovery

545-46
of

(7th

banned

recent

occupant

and

finds

See United States v. Johnson, 383

Cir.

2004)

substance

([A

(drugs)

police
on

officers]

Johnsons

person

clearly provided him with probable cause to search the trunk of

the vehicle . . . since the officer had a reasonable basis for
believing that more drugs or other illegal contraband may have
been concealed inside. (footnote omitted)).
Thus, having found drugs, as well as other items indicating
involvement in the drug trade, on Browns person, Nelson had
probable

cause

to

search

the
13

passenger

compartment

of

the

vehicle

in

which

contraband.

Brown

had

just

been

sitting

for

additional

And if there were any doubt that the drugs and

other items alone justified the search of the vehicle, we note

that Brown also walked away from Nelson, reached back into the
vehicle while being frisked, and struggled with Nelson.

These

facts provided further reason for Nelson to believe that there

was additional contraband in the vehicle.

We thus conclude that

Nelsons search of Bakers vehicle was supported by probable

cause

and

that

it

therefore

comported

with

the

automobile

exception to the warrant requirement.

This
Browns

all

assumes,

person,

which

of

course,

uncovered

that

the

Nelsons

items

that

search
gave

Nelson

probable cause to search the vehicle, was itself lawful.

parties

argue

extensively

over

the

point,

but

even

of

The

assuming

arguendo that Nelsons search of Brown in some way violated the

Fourth Amendment, it would be of no avail to Baker.
defendant

must

have

proper

standing

search under the Fourth Amendment.

U.S. 128 (1978).

in

order

to

For a

challenge

See Rakas v. Illinois, 439

Baker of course has standing to challenge the

search of his own vehicle.

But not so the search of Brown.

This court has repeatedly held that one occupant of a vehicle

lacks

standing

to

challenge

the

frisk

or

search

of

another.

See, e.g., United States v. Rumley, 588 F.3d 202, 206 n.2 (4th
Cir. 2009); United States v. Taylor, 857 F.2d 210, 214 (4th Cir.
14

1988).
and

Baker therefore lacks standing to challenge the frisk

search

of

Brown,

which

uncovered

the

contraband

that

ultimately gave Nelson probable cause to search Bakers vehicle.

For this reason as well, it would have been futile for Bakers
lawyer to challenge the search of the vehicle on direct appeal.
In short, because the search of Bakers vehicle was plainly
justified by the automobile exception to the warrant requirement
irrespective of Gant, Bakers lawyer did not perform deficiently
in declining to challenge the search on direct appeal.

And

because we find no deficient performance on this basis, we need

not

address

the

governments

alternative

argument

that

his

lawyer would have been precluded from raising such a challenge

in

the

first

place

because,

under

Federal

Rule

of

Criminal

Procedure 12, Baker had waived the issue by failing to file

prior to trial a motion to suppress the fruits of the search.
B.
We must reject as well Bakers argument under the second
prong of Strickland, namely that what he alleges was deficient
performance somehow prejudiced the defense.

To show prejudice,

a defendant must demonstrate a reasonable probability that, but

for

counsels

unprofessional

errors,

proceeding would have been different.

694.

the

result

of

the

Strickland, 466 U.S. at

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.

15

Id.

Baker takes it for granted that he was prejudiced by his

lawyers failure to challenge the search of his vehicle under
Gant

on

direct

appeal.

Had

such

challenge

succeeded,

he

contends, this court would have had to suppress the evidence

found

during

the

exclusionary rule.
were

based

solely

search

pursuant

to

the

Fourth

Amendment

And because all but one of his convictions

on

that

evidence,

Baker

argues

that

those

convictions would necessarily have been overturned.

As the district court noted, however, application of the
exclusionary

rule

is

in

fact

barred

in

Bakers

case

by

the

Supreme Courts decision in Davis v. United States, 131 S. Ct.

2419 (2011).

Davis extended the good faith exception to the

exclusionary rule to hold that [e]vidence obtained during a

search conducted in reasonable reliance on binding precedent is
not subject to the exclusionary rule.

Id. at 2429.

The Court

announced this rule, moreover, in a case that also involved the

retroactive application of Gant.

See id. at 2426.

Applying the

good-faith exception to Daviss case, the Court held that even

though

Davis

had

successfully

challenged

search

on

direct

appeal under Gant, the evidence obtained during the search was
not subject to suppression because the search had accorded with
binding circuit precedent when it was conducted.
2434.

16

See id. at

Similarly, at the time Nelson searched Bakers vehicle, our

precedent permitted the police to search a vehicle incident to
the lawful arrest of one of its occupants regardless of whether
the

occupant

was

compartment,
United
(citing

States

rule
v.

United

1995)).

within
that

Wilks,

States

Following

exclusionary

reaching

rule

Gant
647

v.

does

F.3d

we

not

of

subsequently

Milton,

Davis,

distance

520,
52

have

bar

(4th
78,

accordingly

the

passenger

abrogated.

522

F.3d

the

Cir.

80

2011)

(4th

held

introduction

See

that

of

Cir.
the

evidence

found during searches that would have been constitutional but

for Gant and that were conducted before the decision.
at 524.

See id.

Davis mandates the same result here, given that Nelson

was doing exactly what the law at the time said he could do when
he searched Bakers vehicle.

This is precisely the kind of

good-faith reliance on precedent that Davis meant to protect and

encourage.
Baker

attempts

to

avoid

this

conclusion

by

noting

that

Davis was not decided until 2011, after his appeal had concluded
and his conviction had become final.

Baker thus argues that,

had his lawyer successfully challenged the search of his vehicle

under Gant on direct appeal, the good-faith exception would not
have

barred

case.
appeal

This
would

the

application

shows,
have

Baker

been

of

the

contends,

very

exclusionary
that

different
17

the

indeed

rule

to

his

outcome

of

his

had

his

lawyer

raised Gant and that his defense was therefore prejudiced within
the meaning of Strickland.
Baker, however, misunderstands the nature of Stricklands
prejudice inquiry.

While it is certainly necessary to show that

the outcome of the proceeding at issue would have been different

in order to prove prejudice, it is not sufficient.

As the

Supreme Court has explained, an analysis focusing solely on

mere

outcome

determination,

without

attention

to

whether

the

result of the proceeding was fundamentally unfair or unreliable,

is defective, for set[ting] aside a conviction or sentence
solely because the outcome would have been different but for
counsels error may grant the defendant a windfall to which the
law does not entitle him.

Lockhart v. Fretwell, 506 U.S. 364,

369-70 (1993) (citing United States v. Cronic, 466 U.S. 648, 658
(1984)).

To avert such windfalls, Stricklands prejudice prong

is governed by the law as it stands at the time a court is

considering

defendants

ineffective-assistance

claim,

in

contrast to the performance prong, which is governed by the law

as it stood when the defendants lawyer acted.

Id. at 372.

In determining whether Baker was prejudiced by his lawyers

alleged deficient performance, then, we must apply current law,
including Daviss application of the good-faith exception.
the

reasons

suppressing

noted
the

above,

evidence

the
found
18

exception
during

the

would

bar

search

of

us

For
from

Bakers

vehicle,

because

the

officers

were

existed at the time of the search.

following

the

law

as

it

This means that, regardless

of any appellate challenge to the search under Gant, Baker still

would

not

Strickland

be

prejudiced

in

the

ineffective-assistance

sense

required

claim.

To

to
hold

prove

his

otherwise

would be to confer on Baker a windfall to which the law does

not entitle him, id. at 370, and to stray far from the core
purpose of the exclusionary rule, which is to deter unlawful
conduct on the part of officers, not law-abiding actions, see
United

States

v.

Leon,

468

U.S.

897,

906

(1984).

This

we

decline to do.

IV.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED

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